July 11, 2007

There's a federal court lawsuit claiming a First Amendment right not to put on a cockfight, but to show it on the internet when the fight itself takes place in Puerto Rico where it is legal.

“We believe firmly that broadcasting and selling legal cockfighting over the Internet is not a crime,” said David O. Markus, a lawyer for the company, Advanced Consulting and Marketing, which runs the site www.toughsportslive.com. “As bullfighting is part of Spanish culture and as violent human fighting is part of our culture, cockfighting is part of Puerto Rican culture.”...

The [federal] law, enacted in 1999 and signed into law by President Bill Clinton, makes it a crime to sell depictions of animal cruelty for commercial gain. There is an exception for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

The plaintiffs do well to play the ethnic diversity card. Congress did not come up with this law to squelch Puerto Ricans, however. What Congress wanted to crush was crush video -- which had women "talking to the animals in a kind of dominatrix patter” and crushing them under her bare or high-heeled foot. (Remember the 90s?)

The law says nothing about whether the underlying conduct is illegal, but makes it illegal to sell depictions of cruelty to animals in places where that conduct would be illegal.

President Clinton issued a statement when he signed the bill, saying he would instruct the Justice Department to construe the law narrowly, limiting it to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context. And I note the humor in the way the plaintiffs would take advantage of Clinton's limiting construction by saying that the interest in cocks is not about sex.

Anyway, the government has prosecuted individuals for selling videos of dog fights, so Clinton's effort to maintain the focus on prurient sex is a nonstarter.

The linked article quotes Eugene Volokh, saying the law is unconstitutional because it restricts speech and does not "fall into any existing First Amendment exception.” On the government's side, the argument is that it's like "laws prohibiting obscenity, child pornography, incitement and fighting words." The idea is to create a new category of speech that is "low value," a new First Amendment exception. I hate seeing the courts move in that direction.

The real question is whether the child pornography exception -- the one exception that allows restriction of the distribution of speech because of the manner in which the speech was created -- should be extended to cover the distribution of material the making of which involved harm to animals, rather than just harm to children. The argument would be that, as with child pornography,

production of cruelty videos can be done in secret, but the distribution has to be relatively public;

a ban on production will thus be very hard to enforce;

so long as there's money to be made in distributing cruelty videos, there'll always be someone willing to produce them; and thus,

to prevent the harm that takes place when the videos are made (injury to animals), one also needs to stop their distribution.

The argument against extending the child pornography exception would be:

The statute might end up suppressing a lot of valuable speech, such as the film of the bullfight and the like, and clause (b) is an inadequate safe harbor because it's much too vague.

The statute will in fact suppress more valuable speech than child pornography law does, because depictions of animal cruelty are more likely to be relevant to political debates or to legitimate art than depictions of sex (or of lewd exhibition of genitals) involving children.

The harm that the distribution of this speech causes -- indirectly furthering animal cruelty -- is much less severe than the harm of indirectly furthering sexual exploitation of children.

Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context.

For those readers who might think Ann is on to something with this Clinton signing statement business, she's not. She's just being willfully stupid. Here is the difference between George W. Bush's use of them and every other previous president's:

Reagan, George H.W. Bush, and Clinton used the presidential veto instead of the signing statement if they had a serious problem with a bill, giving Congress a chance to override their decisions.

But the current President Bush has abandoned the veto entirely, as well as any semblance of the political caution that Alito counseled back in 1986. In just five years, Bush has challenged more than 750 new laws, by far a record for any president, while becoming the first president since Thomas Jefferson to stay so long in office without issuing a veto.

It seems to me that casting cockfighting and its various depictions as a free speech issue, really overlooks the innate barbarity of the underlying spectacle. It cheapens both the notion of free speech and barbarity of blood sport. Pitting two animals in a fight, often to the death, for purposes of human pleasure or betting opportunities is repugnant to me.

jason,In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers"

Why should we care what the ABA says? Signing statements carry no authority of their own, as we see from this story. Clinton's description of it being only for sex related video hasn't stopped this administration from preventing distributon of dog fighting films.

All the statements do is say how the law will be interpreted and enforced by the current administration. If the administration fails to enforce a law, they can be sued--much like MA sued the EPA over CO2.

The (ostensibly) real intent of a signing statement is to state how the POTUS will interpret or execute the law. The Executive is a legal and constitutional interpreter just as the Judicial branch is. Why should we have to glean intent or policy from the executive's acts when he (or she) can tell us up front?

isn't the real intent of a signing statement to circumvent the will or intent of congress?

No.

"signing statements are not part of the legislative process as set forth in the Constitution, and have no legal effect. A signed law is still a law regardless of what the President says in an accompanying signing statement.

Signing statements have been used since the early 19th century by Presidents to comment on the law being signed. Such comments can include giving the President’s interpretation of the meaning of the law’s language; asserting objections to certain provisions of the law on constitutional grounds; and stating the President’s intent regarding how the President intends to execute, or carry out, the law, including giving guidance to executive branch personnel."

Clinton: "This bill is good for America, and I am pleased that my administration could fashion it with the Congress on a bipartisan basis. It moves us further down the road toward our goal of a balanced budget while protecting, not violating, the values we share as Americans - opportunity, responsibility, and community"

http://www.coherentbabble.com/signingstatements/GAO/GAO-B-308603.pdf

Of course, it may be easier for you to simply believe BushHitler is using signing statements to create a dictatorship. Have fun with that one.

I hate the fact that people think that restricting speech is ever acceptable. You would think that we were in the Soviet Union, where there was "Prohibited Material". There is a almost a majority of opinion that thinks that things that they dislike should be stomped into the ground, as they are socially objectionable.

No, I've heard he's signed more than 68,877 of them. Here's one now, REALLY SCARY STUFF!!!!!

Bush: "Today, I have signed into law H.R. 972, the "Trafficking Victims Protection Reauthorization Act of 2005." This Act enhances our ability to combat trafficking in persons by extending and improving prosecutorial and diplomatic tools, and also adds new protections for victims."

"Section 104(e)(2) purports to require the Secretary of State, prior to voting for a new or reauthorized peacekeeping mission under the auspices of a multilateral organization (or, in an emergency, as far in advance as is practicable), to submit to the Congress a specific report. The executive branch shall construe this reporting requirement in a manner consistent with the President's constitutional authority as Commander in Chief and the President's constitutional authority to conduct the Nation's foreign affairs."

Roosters, on the other hand, are pampered fellows. They can't be trained to fight, they do it instinctively. Breeding cock fighting breeds makes them more chicken like rather than less. The hens are dependably broody and protective mothers. In a state of nature these birds would live.

Other chicken breeds are bred away from their instinctive behavior so that they will lay eggs forever and never want to hatch any or will gain weight so quickly they suffer from physical problems or even die. The sort that you buy at the market can't even manage to live if they are allowed to grow to their full size.

I don't have any liking for the sport but I worry about loosing the genetics, which I consider valuable.

Ooh! A signing statement! I love when a Bush era bugaboo comes up in an non-Bush context. And I note the humor in the way the plaintiffs would take advantage of Clinton's limiting construction by saying that the interest in cocks is not about sex.

I would agree with Roger. Cockfighting videos is not the type of free speech that should be protected under the first amendment. I think the government should be allowed to ban it if the purpose of banning the video is iteself constitutional (i.e. to prevent more cockfighting/sexual abuse).

However, maybe this dwells into the cartoon field. Could get away with making a cartoon about cockfighting, because no cock fighting occurred as part of the making of the cartoon. Could you make a cartoon about child sex?

If you have a problem with the current administration's level of transparency (and you have made it clear you do), then why are you opposed to one clear instance where there is transparency?

Do you favor consistancy, even if it a a consistancy in a direction you oppose? Maybe it is just easier to assume that whatever the president is doing, it must be wrong. He is a stopped clock which isn't even right twice a day!

why not allow the Executive Branch to issue Executive Orders limiting the way Congress operates? If Congress objects, they must allow the President to vet or discuss?

Separation of Powers, Lucky:

"...the founders were particularly concerned with the Congress's potential for improvident or overreaching action: the tendency of republican governments is to an aggrandizement of the legislat[ure] at the expense of the other departments. The Federalist No. 49, at 315-16 (James Madison) (Clinton Rossiter ed., 1961), cited in United States v. Brown, 381 U.S. 437, 444 n.17 (1965). Many specific aspects of the Constitution's separation of governmental powers embody the founders' profound conviction ...that the powers conferred on Congress were the powers to be most carefully circumscribed and the founders' recognition of the particular propensity of the legislative branch to invade the rights of the Executive. INS v. Chadha, 462 U.S. 919, 947 (1983) (quoting The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton Rossiter ed., 1961))."

lucky... I live on this planet last time I checked -- a planet where most people do some good and some bad things. Bush is adhering to principles of transparency in his signing statements. He is not when he seeks to hide Presidential papers in Presidential libraries, his immigration debacle, etc. See in the real world one can disagree with someone else without going into hysterics or demonizing the other person. It's called Earth -- try it.

I'll spell it out for you. Clinton was NOT E-V-I-L. Bush is not evil either nor does he walk on water. Go figure lucky... they are both men with their strengths and weaknesses. My 7 year old understands that why can't the moonbats?

Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.

3. Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."

Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.

4. Aug. 8: The Department of Energy, the Nuclear Regulatory Commission and its contractors may not fire or otherwise punish an employee whistle-blower who tells Congress about possible wrongdoing.

Bush's signing statement: The president or his appointees will determine whether employees of the Department of Energy and the Nuclear Regulatory Commission can give information to Congress.

5. Aug. 5: The military cannot add to its files any illegally gathered intelligence, including information obtained about Americans in violation of the Fourth Amendment's protection against unreasonable searches.

Bush's signing statement: Only the president, as commander in chief, can tell the military whether or not it can use any specific piece of intelligence.

They are all a bit of transparency. He's staking his turf. That's his job. If he goes too far the Court will rein him in or he will get unelected (a moot poiint now I realiuze, but theoretically) or impeachment.

It is perfectly OK for any POTUS to tell Congress "I hear what you say and here's my take." Again -- the office is an interpretive body just as the Congress and the Court. He is interpreting what he feels are his limits or duties under the law. If it conflicts with the law a suit will be filed and the Court will detemrine who has the right of way. That's the way it's supposed to work.

Just because it doesn't work out that way every time does not make Bush evil or stupid or the Court his puppet or put Halliburton in charge or whatever the spectrum of irrational bile of Bushhatred tells some folks. Why has Bush issued so many? There are quite a few controversial issues going on not the least of include Gitmo, Iraq, etc. and they all involve fundamental issues of executive power. He feels he has broader powers -- which is arguable under Art. II. Congress feels he doesn't -- which is arguable under Art. I. They're both valid arguments. Seeing anything sinister there is tad paranoid. I'm not trying to outpiss you (too early in the day for that much beer) and I'm not a Pollyanna. Bush has done much that is wrong. I don't think it makes him evil or stupid -- just wrong -- like Bill Clinton was wrong in healthcare, terrorism, etc. Hillary is scary, but that's a different thread.

troy,i think my primary argument is this: any president could also "veto" anything coming out of congress, but at least then we would have a much better idea of how such legislation might influence or effect americans.

by using the signing statement, the president basically bypasses any debate and takes it upon himself to make the rules.

here's a portion of an overview of a well-received book by philip cooper titled; "by order of the president," considered a balanced interpretation of the pros and cons of signing statements:

Cooper shows numerous examples of Presidents using signing statements to bend statutory interpretation away from congressional intent or even declare selected provisions of law unconstitutional, acting as if the Constitution authorizes a line item veto.

Cooper is appropriately critical of the aggressive use of signing statements and other means of direct action. In his final chapter, Cooper gives a compilation of “Washington Rules,” a set of informal norms “that have for so long permitted committed adversaries to address the nation’s most controversial topics and yet continue to work together.” Cooper delineates twelve rules, which happens to be the same number of points found in the Boy Scout Law. He concludes:

"To the degree that presidential power tools are used to hide important actions, to deceive other players as to the true nature of an administration’s decision, to make an end run around the other institutions, or to fabricate what purports to be real authority for important moves by piling one directive on top of another, these rules are dramatically undermined."

"The law...makes it illegal to sell depictions of cruelty to animals in places where that conduct would be illegal."

Wouldn't it be simplest to just make it illegal to sell depictions of cruelty to animals that were filmed in places where that conduct would be illegal? And isn't there already some sort of law that prohibits profiting from a crime?

I really hope that the exemptions are clear and are easy enough to qualify for, however, because I'm sure much of the content that animal rights groups put out would qualify as depictions of animal cruelty.

Lastly, regarding Volokh's last argument against the exception, isn't he creating a new category of harm and cruelty that is "low value," simply because some people might find a video of a 16-year-old having sex (that qualifies as child pornography, correct?) more objectionable than one of, say, animals being crushed by women in high heels? Then again, I guess the law already distinguishes between cruelty against animals and against humans in its penalties.

Lots of conservatives pushing back on liberals over claiming Bush is a "dictator".

But, you search on "dictator" here and only the cons are using it. Which brings up the whole concept of a "strawman" argument. And when you see someone arguing with a strawman, remember it's just another form of mental masturbation.

Luckyoldson: It's a lot easier for a President to veto a bill that is simple and addresses one issue. When instead it has a hundreds different aspects to it and because the 'line item veto' was found to be unconstitutional, vetoing a law can be a matter of throwing the baby out with the bathwater.

Consider a signing statement to be the President holding his nose in signing a bill, but drawing a line when parts of it encroach on his constitutional authority, as he sees it.

The issue with the 1999 bill was that some people were selling videos that depicted women killing animals, usually by crushing them, and it was being bought by people who apparently found that sexy.

However, given the signing statement, it does bring up the question of whether it is any different to be selling a video in which the motive of the buyer is sex, vs. a video in which the motive of the buyer is gratuitous violence.

The motivation for the cockfighting videos is that it has been a lucrative industry for a small number of people. The last three states to allow it were Oklahoma, New Mexico and Louisiana (if you look at a map you'll notice they are strategically placed to allow Texans to spend a weekend out of town but maintain a level of deniability.) But OK and NM have since banned it, and it is only a matter of time before LA does. Hence the attempt to beam it in from Puerto Rico (a U.S. territory, to strenthen the bid, but if it becomes illegal there they may try it from Thailand or someplace else where cockfighting is still practiced and a major industry.)

Is there a difference? And if there is, then doesn't it go back to that old 'sex is bad, violence is good' parody?

"fen is constantly whining about how i compare bush to hitler, which is total bullshit.

as i said earlier today, i would but it would be an insult to hitler's intelligence and leadership abilities.."

With the exception of people like Aryan Nations types, any comparison to Hitler is assumed to leave out any good traits he may have had. Hence, when the president is compared to the former chancellor, we know that it is not the love of animals or children etc...

So if you say that you would, except for the whole intelligence and leadership bit. You ARE making exactly the type of comparison which is traditionaly made.

In addition: Trotting-out the old "strawman argument" when you know it isn't valid, is itself a strawman arguement and while this may cause mental pleasure, it is certainly not productive.

dbp,how about this: i think bush is inept in every regard...and will be viewed as the worst president in our nation's history.

he and his neocon friends have created a situation that effects the entire world in a negative way...and he will be remembered for being a president who literally never admitted to making a mistake...ever.

This is a special day -- Lucky's discovered that a lot of people say bad things about Bush on the Internet. Tune in tomorrow when he shocks us with the news that those Nigerian inheritance emails are fakes.